| La. | Oct 15, 1839
delivered the opinion of the court.
The plaintiff alleges that she is the widow of Joseph Kerr; that, by her marriage contract, her said husband settled on and donated to her certain immoveable property therein described; that the defendant, having been appointed administrator to her said husband’s estate, has advertised for sale the property thus belonging to her, together with the other property of the deceased ; that no inventory has been made; that all the proceedings are irregular and void, and that the defendant has.no right to sell her said property. She concludes with a prayer that the aforesaid property be not sold, but be partitioned and assigned to her as her own, by the decree of the court. The defendant, and the other heirs at law of the deceased, aver that the property claimed has been sold, and has passed into the hands of third persons; and they set up divers other matters of defence, all tending to deny her title to the property.
Under these pleadings, the judge a quo refused to pass on the merits of the issue placed before him, and, from this refusal, the plaintiff appeals.
It is evident that the plaintiff’s object is to recover certain property, and not to obtain a partition, as contended for. It is also clear that the Court of Probates cannot inquire directly into the title to real estate, though there are cases in J . ° . which it may be done incidentally for certain purposes. No plea to the jurisdiction was made by the defendants, but the want of'jurisdiction in this case being ralione materice, no consent could give it, and the judge was bound to notice it ex officio. Code of Practice, 925. 3 Louisiana Reports, 514.
An attempt has been made to show that this is, in fact, an ac(j0n to annul all the proceedings that had taken place. We find in the petition an allegation to that effect, but there *s no corresponding prayer for the nullity of the proceedings, except as relates to the sale of the property claimed. We jnfer from the whole tenor of the petition, taken together, . r 7 , ° that the allegation of the nullity of all the proceedings was merely incidental to the principal demand, to wit, the re-covei'y property. We are of opinion, that the court below did not err in declining jurisdiction,
It is, therefore, /ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs, *